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Our cash bail system is broken, perhaps beyond repair. It imposes pre-emptive punishment on poor people charged, but not convicted, of a crime.

Fortunately, the creation of the means that we do not have to wait for government officials to reform a system founded on the perverse premise that the poor deserve more punishment than the rich and the middle-class.

A recent report from the Hawaii ACLU highlights the problems with our bail system. Bail is theoretically used to ensure defendants appear for trial and to detain defendants who pose a threat to the public. However, high bail amounts are not necessary to ensure that defendants appear, as the Marshall Project highlighted in its bail study, which found that text message reminders were just as effective as cash bail. Cash bail is not based on flight risk or danger to the community either.

Since ability to pay is the factor that determines whether a defendant is detained, release under cash bail is based on wealth. This means that a wealthy defendant who poses a risk will be released, while a poor one that does not will be detained.

To understand the most severe consequences of that, one might consider Stephen Brown, who was released on bail awaiting a trial for domestic violence when he allegedly murdered Telma Boinville on the North Shore in December 2017.

Currently 1,145 persons are languishing in our jails because they cannot afford bail, crowding our jails, and in turn causing incidents like the recent riot in Maui, along with issues like lack of medical care and adequate hygienic resources.

Moreover, most of Oahu’s jail inmates are not dangerous criminals. Data provided by the Department of Public Safety shows that less than one-fourth of the Oahu Community Correctional Center inmates are in jail charged with class A or B felonies; the other three-quarters are being held for a class C felony or lesser charges (misdemeanor, technical violation, petty misdemeanor, violation). Releasing these inmates would not only save money, it would pose little risk to public safety.

Cash bail violates constitutional principles as well. It is inherently discriminatory since it means that the wealthy are afforded better treatment. Discriminatory release on bail leads to discriminatory trial outcomes, for defendants detained before trial are typically unable to mount as effective a defense as those released on bail.

Pretrial detainees cannot assist their attorneys in finding witnesses and gathering evidence. And most detained defendants rely on overworked public defenders as well.

Furthermore, prosecutors use pretrial detention coupled with threats to charge the highest offense possible in order to coerce plea deals. This means that many defendants plead guilty not because they are guilty but because exercising their right to trial is too risky. These factors deny the poor due process and equal protection under the law, and they also are drivers of mass incarceration.

Wasting Public Money

And then there is the cost. Cash bail wastes precious public resources as we pay approximately $145 per day, per prisoner. And the state wants to spend hundreds of millions on new jails (that we do not need) to alleviate overcrowding. Given how officials cry poverty on issues like school funding, we cannot continue such reckless expenditures.

Yet, true reform will come slowly, if at all. Three bail reforms passed in this year’s legislative session, which is encouraging. One allows for defendants to petition for unsecured bail (meaning no money put up front). Another one allows for posting of bail 24 hours a day, seven days a week. But that change does not require passage of new law. A final one ensures speedy bail hearings.

None of these will end cash bail, and time will tell how much they limit its uses and abuses (we are not optimistic). Legislators are cautious with justice reform for some justifiable reasons, but the most glaring reason is that they fear political blowback from pro-punishment groups like the State of Hawaii Organization of Police Officers who argue, falsely, that nonpunitive reforms endanger public safety.

We encourage the public to join us in supporting the bail fund.

But citizens are being proactive, creating a community bail fund for Hawaii. A community bail fund is a revolving fund used to post bail for defendants who cannot afford it. The bail money is returned when the defendant appears for trial, meaning it can be used repeatedly.

The Democratic Socialists of Honolulu, led in this effort by Kevin Landers, recently established the Hawaii Community Bail Fund as a nonprofit organization. Landers characterized the project as reparations for colonialism as our system disproportionately affects Kanaka Maoli, and he hopes to work primarily with that community to identify referrals for the program.

Not only is the bail fund a forward-looking endeavor, it’s a win for the community all around. While the financial impact may be small at first, freeing the unnecessarily incarcerated will save us money.

More importantly, it will reduce violence and promote justice. Individuals freed on bail will no longer face the considerable dangers of assault present in our correctional facilities. The bail fund will keep parents and children together.

It will help innocent defendants effectively mount a defense. It will reduce the number of community members brutalized and dehumanized by the experience of incarceration, which often spurs more violence from those individuals. Even those wary of “catch and release” policing should support this, as it would free up jail spaces for those cases in which pretrial detention actually is in the public interest.

We encourage the public to join us in supporting the bail fund by donating money or their time as volunteers.

Someone once said, ‘“Justice is always coming.” Let’s usher it in more quickly.